Case Note & Summary
The case involves a criminal application under Section 482 of the Code of Criminal Procedure, 1973, challenging an order dated 20.04.2013 passed by the Judicial Magistrate, First Class, Darwha, allowing an amendment application (Exh.75) in a complaint under Section 138 of the Negotiable Instruments Act, 1881. The original complainant, Syed Mazaruddin, had agreed to sell his land to the accused and received a cheque for Rs.10,00,000/- dated 30.06.2006, which was dishonoured due to stoppage of payment. After notice and non-payment, a complaint was filed. The Magistrate took cognizance and issued process. During evidence, the complainants sought amendment to introduce new facts. The Magistrate allowed the amendment. The accused challenged this order. The High Court held that allowing amendment after cognizance and process would cause prejudice to the accused and is not permissible under Section 138 NI Act. The order was quashed.
Headnote
A) Criminal Procedure - Amendment of Complaint - Section 482 CrPC, Section 138 NI Act - Amendment after cognizance and process - The court held that allowing amendment to introduce new facts after cognizance and issuance of process would cause prejudice to the accused and is not permissible under Section 138 of the Negotiable Instruments Act, 1881. The order allowing amendment was quashed. (Paras 1-10)
Issue of Consideration
Whether the amendment to the complaint under Section 138 of the Negotiable Instruments Act, 1881, sought after cognizance and issuance of process, is permissible.
Final Decision
The High Court allowed the criminal application and quashed the order dated 20.04.2013 passed by the Judicial Magistrate, First Class, Darwha, allowing the amendment application.
Law Points
- Amendment after cognizance and process not permissible
- Prejudice to accused
- Section 138 NI Act
- Section 482 CrPC
Case Details
2023 LawText (BOM) (04) 130
Criminal Application (APL) No. 680 of 2013
Mr. M. M. Agnihotri for applicants, Mr. R. J. Mirza for non-applicants
Ramdeobaba Developers and Builders through its Partner Harikisan Vithaldasji Chandak, Ganesh Vithaldasji Chandak, Suresh Kanakmal Bothara, Dhiraj Champalal Chhallani
Syed Mazaruddin Syed Shabuddin (Since dead, through his Lrs) - Kazi Syed Shabuddin Sayad Mazarhuddin, Akila Begum Wd/o Kazi Syed Mazarhuddin, Taslim Durdana Shafal Ahmed, Firdos Rukhsana Athar Moyuddin
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Nature of Litigation
Criminal application under Section 482 CrPC challenging order allowing amendment in complaint under Section 138 NI Act.
Remedy Sought
Applicants (accused) sought quashing of order dated 20.04.2013 allowing amendment application.
Filing Reason
The complainants sought amendment to introduce new facts after cognizance and issuance of process, which the accused contended was not permissible.
Previous Decisions
Judicial Magistrate, First Class, Darwha allowed amendment application (Exh.75) on 20.04.2013.
Issues
Whether amendment to complaint under Section 138 NI Act after cognizance and issuance of process is permissible.
Submissions/Arguments
Applicants argued that allowing amendment after cognizance and process would cause prejudice to the accused.
Non-applicants (complainants) supported the amendment.
Ratio Decidendi
Amendment to a complaint under Section 138 of the Negotiable Instruments Act, 1881, after cognizance and issuance of process, is not permissible as it would cause prejudice to the accused.
Judgment Excerpts
In this criminal application, filed under Section 482 of the Code of Criminal Procedure, 1973, challenge is to the order dated 20.04.2013 passed by the Judicial Magistrate, First Class, Darwha, whereby learned Magistrate allowed the application (Exh.75) in Cri. Complaint Case No. 1272 of 2007, made by the complainants seeking amendment to the complaint filed under Section 138 of the Negotiable Instruments Act, 1881.
Procedural History
Original complaint filed under Section 138 NI Act. Magistrate took cognizance and issued process. During evidence, complainants filed amendment application (Exh.75). Magistrate allowed amendment on 20.04.2013. Accused challenged order in High Court under Section 482 CrPC. High Court quashed the order on 28.04.2023.
Acts & Sections
- Code of Criminal Procedure, 1973: 482
- Negotiable Instruments Act, 1881: 138
